Media on the Edge

Cutting Edge contributor

Lightning struck at Congress for a second time last week, when the House of Representatives unanimously passed HR 2765, the Securing and Protecting our Enduring and Established Constitutional Heritage Act (SPEECH Act). The Act, which had been approved unanimously by the Senate the week before, is now a presidential pen stroke away from enactment.

The Act is designed to ameliorate the speech-suppressive effects of libel tourism, a practice in which wealthy plaintiffs obtain judgments against American authors and publishers abroad by bringing libel suits in jurisdictions with plaintiff-friendly defamation laws. Such libel tourists sometimes attempt enforcement of the foreign judgment in the United States, in the hopes of having an American court execute a judgment that it could not have legally rendered in the first place.

“Libel tourism threatens to undermine the principles of free speech because foreign courts often don’t place as difficult a burden on plaintiffs in libel cases,” said Representative Steve Cohen (D-TN), the original sponsor of the bill in the House. “I believe our First Amendment rights to be among the most sacred principles laid out in the Constitution. It is vital we ensure that these rights are never undermined by foreign judgments.”

For publications which have not been purposefully distributed abroad, the SPEECH Act prevents the automatic enforcement of foreign defamation judgments against American authors and publishers. The foreign plaintiff seeking to enforce the judgment bears the burden of proving that the judgment accords with American due process and First Amendment protections for freedom of speech.

Once a foreign judgment is rendered, authors and publishers have the opportunity to obtain a declaratory judgment that enforcement of the foreign judgment would be “repugnant” to American law. Declaratory relief also allows authors and publishers to combat the negative financial and professional repercussions of a libel judgment against their work. The winning author is also reimbursed for his legal fees.

Libel tourism has proven an effective tool for silencing even legitimate scholarship and investigation into areas including national security and scientific research. In 2008, the United Nations Human Rights Commission noted that libel laws in Britain – the most popular destination for libel tourists - “discourage[d] critical media reporting on matters of serious public interest, adversely affect[ed] the ability of scholars and journalists to publish their work," and "affect[ed] freedom of expression worldwide on matters of valid public interest."

Director of the New York-based American Center for Democracy, Dr. Rachel Ehrenfeld, initiated the anti-libel tourism efforts which led to the creation of the SPEECH bill and earlier legislation enacted in seven states.

Ehrenfeld said that she "welcomed the passage of the bill" and was “ecstatic” that “both sides of the aisle came together in defense of freedom of expression, protecting the American people and its traditions against the imposition of draconian and illiberal legal regimes. With this legislation, Congress has taken action against a dire threat to our freedom and democracy.”

She also congratulated Representatives Steve Cohen and Peter King (R-NY), and Senators Leahy (D-VT), Session (R-AL), Specter (D-PA), Lieberman (CT), Schumer (D-NY), Wyden (D-OR) and Kyl (R-AZ) for their pro-speech efforts and legislative initiatives leading to the creation of the SPEECH Act."It's an amazing accomplishment. I hope that the White House acts quickly to sign this legislation into law and that its enactment signals the way ahead for free speech advocates the world over,” she said.

The passage of the SPEECH Act has been greeted by an outpouring of media support, including congratulatory editorials in the Los Angeles Times and the New York Times, and coverage in the British media, which is closely tracking the progress of the legislation.

Calls for British libel law reform have grown increasingly urgent and popular as U.S. anti libel tourism legislation progressed over the past several years and are starting to bear fruit. The British Parliament is currently considering legislation to mitigate what British Justice Minister Jack Straw admitted was the “chilling effect” of the current laws, which were ““hitting the press.”

As Padraig Reidy, a spokesman for the Index on Censorship, noted in an interview with the UK's Telegraph, the support for SPEECH Act "is a vindication of our argument that English libel laws in their current state do not encourage or protect free expression. The fact that Britain's best ally feels the need to protect itself from the English libel courts demonstrates the need for reform."

The British and American efforts against tourism are a result of Ehrenfeld's involvement in free speech advocacy following her own experiences with a notorious libel tourist. Her litigation from late 2004 become a banner case for the libel law reform movement internationally.

Sued in Britain by a Saudi sheik after revealing his connections to terrorist organizations, Ehrenfeld attempted to block the enforcement by New York courts of the resulting default judgment against her in the British courts. Although her book had been written and marketed in the United States, the UK court had taken jurisdiction of the sheik's case and ordered her to retract her statements and pay hundreds of thousand of dollars in penalty and legal fees.

Ehrenfeld's case in the New York precipitated the passage of the New York State Libel Terrorism Protection Act – also known as Rachel's Law - enabling courts to take jurisdiction over foreign defamation plaintiffs that seek enforcement of their judgments in New York.

Since 2008, Rachel’s Law analogs have passed in Illinois, California, Florida, Maryland, Utah,, and Tennessee, and are pending in several other states as well.

The SPEECH Act is based on Rachel's Law, and offers enhanced protections for defendants. There are already rumblings that Congress will move to amend the legislation to bolster its deterrent effects on prospective libel tourists.

The Congress needs to pass broader measures that permit U.S. citizens accused of libel in foreign courts to force their accusers to pay for legal fees incurred abroad and, in certain cases, additional damages,” stated Senator Jon Kyl (R-AZ) upon the passage of the SPEECH Act in the Senate. “Libel tourism will continue to pose problems for Americans until those who bring foreign libel lawsuits are faced with the same kinds of financial risks they seek to inflict on others.”